Borrie 1

Spenser Borrie
Prof. Dyzenhaus
Manish, T.A.
April 5, 2018
Word Count: 2163
Memorandum

TO: Judge(s) of the Supreme Court of Canada

FROM: Spenser Borrie
DATE: April 5, 2018
RE: Trinity Western Case and the Implications of State Neutrality for Individuals and Groups in
Canadian Democracy

1. The Trinity Western Case

Trinity Western University (“TWU”) is a private Evangelical Christian university in British

Columbia seeking to establish a law school. TWU's mandate involves upholding Evangelical Christian

values, which recognize neither same-sex marriages, nor common-law non-marital relationships. TWU

requires all students and faculty to sign a “Community Covenant”, which prohibits engaging in sexual

activity outside of heterosexual marriage. As a result, while LGBT individuals are not barred from

admission to TWU's law school, they face effective discrimination in the admissions process, and in

quality of student experience.

TWU sought accreditation for its law school from the provincial law societies, to ensure its

graduates could practice across Canada. Only three provincial law societies refused to accredit TWU;

of these, the decisions of the British Columbia and Nova Scotia law societies were overturned on

appeal. The Law Society of Upper Canada (“LSUC”), which oversees accreditation in Ontario, refused

to accredit TWU, and this decision was upheld by the Ontario Court of Appeal (“OCA”), on an appeal

brought by TWU and one student (“V”) who felt compelled to choose another law school because of
Borrie 2

the accreditation dispute. TWU and V have now appealed the OCA decision to the Supreme Court.

In 2001, the Supreme Court had ruled in TWU's favour in a case where the British Columbia

College of Teachers refused to accredit teachers trained at TWU. The Court, distinguishing between

belief and conduct, found insufficient evidence to demonstrate that TWU's graduates would

discriminate against LGBT or other minority groups. The OCA, in its decision, asserts that the 2001

TWU precedent does not apply to the case at hand, because the relevant issue is not graduate conduct,

but rather the public interest in non-discriminatory access to the legal profession. While this distinction

is sound and profitable, it is not—as OCA claims—so sharp as to banish the 2001 TWU case from

consideration entirely: as TWU argues, many parallels can yet be drawn.

Returning to the decision, the OCA quotes Dickson C.J., who argues that law schools are

“gatekeepers” to the legal profession—shouldering considerable social responsibility. The OCA then

proposes law societies as a second, similar set of gatekeepers. While the OCA, acknowledging that

even indirect forms of state interference can substantially disrupt private interests, grants that both V's

and TWU's §2(a) Charter rights to religious freedom were infringed by the LSUC, it nevertheless

found that LSUC had acted reasonably in refusing accreditation. The LSUC is entitled to consider its

statutory objectives—equal access and proper qualification in the Ontario legal profession—when

reaching a decision; it is also bound by the Charter (§15) and the Ontario Human Rights Code. TWU,

meanwhile, is seeking access to a public benefit, and the state's interest in preventing discrimination in

education and the legal profession, OCA argues, is strong enough to justify denying TWU this benefit,

especially since the impact on TWU's §2 Charter rights is minimal by comparison. OCA points out that

TWU can still operate as a religious institution, and even teach law, although its graduates will have a

more difficult time practising in Ontario.

Conversely, TWU argues in its appellant factum to the Supreme Court that the LSUC decision's

impact on TWU's §2 Charter rights is real and severe. It imposes a substantial burden on a particular
Borrie 3

religious group, because [76] of their religious beliefs. By increasing the effective costs required for

group members to live according to their religious beliefs, the LSUC decision amounts to state

interference with religious freedom. Of note is TWU's claim that Evangelical Christian law students

report feeling unwelcome or excluded in secular law schools. Refusing TWU accreditation 1 leaves

Evangelical Christians with no law school where they can comfortably practice their religious beliefs;

granting accreditation still leaves LGBT students with numerous “friendly” law schools.

Furthermore, TWU points out that as a private institution, it is not bound to the Charter.

Whatever interest the state has in balancing TWU's religious freedom with LGBT students' equality

interests, one must recognize that the state infringes TWU's Charter rights directly, whereas the

discrimination suffered by LGBT students' arises indirectly from TWU's lawful action 2. One might

wonder how this fits in with TWU's claim that denial of the public benefit of accreditation amounts to

an “indirect” form of state control. Does allowing TWU's discrimination also amount to an indirect

form of state control against LGBT-students?

Nevertheless, as the state has no mandate to police private, lawful action, TWU argues that

LGBT students' §15 Charter rights aren't engaged by accreditation: a private law school like TWU is

not a “benefit of the law” [115], nor is it capable of denying anyone equal treatment under the law.

[128-30] Rather, it is the LSUC, being subject to both the Charter and OHRC, which denies TWU

equal treatment under the law. Charter values, TWU says, cannot create Charter-like obligations in a

private entity, and both LSUC and OCA are mistaken in using them to impose on TWU, under the

banner of “public interest”, a particular conception of equality and the good life.

2. State Neutrality in Perspective

1 As TWU counsel Ranjan Agarwal explains in his guest speech at the University of Toronto.
2 One might wonder how consistent this argument is with TWU's claim that denial of the public benefit of accreditation
amounts to an “indirect” form of state control. Does allowing TWU's discrimination also amount to an indirect form of
state control?
Borrie 4

The TWU case appears—though not by all accounts3—to present a conflict between two

fundamental rights: the right to freedom of conscience and religion, on the one hand; and the right to

equality and freedom-from-discrimination, on the other. While much discussion has centred around the

nature of public access to the legal profession, the case raises deeper questions about the proper role of

the liberal-democratic state in regulating individual belief and behaviour. Just how far should the state

go in enforcing its own conception of the good life, and what should that conception, if any, look like?

One influential answer in the liberal tradition has been the ideal of “state neutrality”, which proposes

that the state ought, as much as possible, to refrain from exercising value-judgments, or endorsing any

particular conception of the good life. On J.S. Mill's classical account of liberal neutrality, the state is

entitled to intervene in private behaviour only when doing so prevents or corrects some tangible,

inexcusable harm done by one to another. In all other cases, the state should remain neutral. It should

especially avoid partiality or imposition of one view in particular, for societal diversity in thought and

belief is recognized as both instrumentally and intrinsically valuable to Mill's “man-as-a-progressive-

being”4.

A countervailing conception of the state's proper role in enforcing morality is exhibited in Lord

Devlin's (in)famous defense of the prohibition on same-sex marriage in the UK. These views, which

can be called “conservative”, or sometimes “perfectionist”, assert that society may indeed enforce its

own particular conception of the good life, through law and the state, as a matter of fundamental right

and self-preservation. Later philosophers, like Dworkin, have sought in some ways to reconcile,

capture, or salvage the conservative/perfectionist objection from within the framework of liberal

neutrality. Dworkin's “liberal-perfectionism” agrees with Devlin that society has the right to enforce its

core moral values in cases not justified by a Millian harm principle, yet he attempts to distinguish

3 TWU argues, as above, that there may be no conflict in rights, since TWU as a private actor fails to engage LGBT
students' right to equal treatment under the law.
4 Something like Mill's neutrality emerges in TWU and Newman's arguments in favour of accreditation.
Borrie 5

between genuine, minimally-rational “moral positions” and non-moral external preferences; which

ought not to be taken into account. In doing so, Dworkin reintroduces an element of liberal neutrality—

which is both meritocratic and exclusionary—by supposing that all and only qualifying moral

positions, which meet some minimum liberal standard of “rationality”, are to be afforded equal respect

and concern in the democratic process of moral decision-making.

Yet just how “neutral” are liberal conceptions of state neutrality? As I suggest: not very.

Returning to Millian neutrality, Mill predicates his plea for the state to excuse itself from private

interaction (which does not breach the harm-principle) on the ideal of “man-as-a-progressive-being”.

But such a thing cannot be other than a conception of the good life! Mill thinks it superior for humans

to live in a society harbouring a diversity of belief and behaviour; Mill thinks that being forced to

challenge and defend one's beliefs is important for personal growth. Very plainly, Mill's liberal

neutrality is reducible to a non-neutral, progressive-utilitarian conception of good living; we see

something like this crop up behind Newman's arguments in favour of accreditation.

But suppose one eschews the progressive aspect of Mill and chooses instead to define state

neutrality solely in terms of harms—a neutral state will act so that no particular conception of the good

life is non-trivially and disproportionately harmed or benefited. Yet this “neutrality-in-outcome” counts

as non-neutral policies which seem unobjectionable. An egalitarian policy of distribution, for example,

would fail to be neutral-in-outcome; because its effects would fall disproportionately on those whose

conception of the good life includes expensive luxuries. And when we realize that Mill's conception of

“harm” includes not only tangible, physical harm; but also a broader “harm-to-rights”, we begin to see

the predicament liberal neutrality is in. There can be no solely-harm-based neutrality if (1) people

fundamentally disagree about which interests or “rights” are to count at all; and (2) one such

understanding must necessarily be taken by the state, as a requirement for practical functioning.

Let us then turn to Dworkin: Dworkin seems to recognize, at least in Mill's account, that
Borrie 6

Devlinesque arguments hold some strength—Dworkin thinks Devlin's real problem is not how he

understands moral belief to work, but rather what he understands it to be. Nevertheless, Dworkin

reintroduces something akin to Millian neutrality, but he safeguards it within an exclusionary-

meritocratic5 liberal framework—the state is bound to neutrality and the ordinary liberal-democratic

process (for reconciling competing moral positions), but only when the beliefs in question actually

qualify as “moral positions”. For Dworkin, this entails some minimum-standard of rationality.

Interestingly, Dworkin does not insist on vindicating the most-rational beliefs—perhaps the

shortcomings of “rationality” as a theoretical device are already apparent. Rationality for Dworkin, like

rationality for all liberals, carries a number of questionable assertions, the most offensive of which is

the claim that liberal-rationality can occupy a privileged position in the moral debate. Rather, we might

have rational reasons for holding non-liberal, non-neutral beliefs. A policy which elevated one

particular religion to the status of a national church could indeed be “rational”, and thus “neutral”, if it

were pursued solely for pragmatic reasons; like supporting the state. Yet such a policy seems obviously

repulsive to those values we seek to realize by our commitment to liberal neutrality—or rather, to

liberalism simpliciter.

3. TWU and the Moral Community

If liberal neutrality is indeed an unfruitful—if not unattainable—concept, then what are we left

with? A Devlinite conception of morality, it might be contended, leaves us no room at all for moral

discussion. It is either this or that belief which is most representative of that societal core of

fundamental values, and since Devlin takes preserving this core to be absolutely essential to the

society's continued existence, then we must declare, in cases like TWU, either one or another belief to

be the “victor”; we are left with no room for nuanced consideration.

This is, I think, a rather uncharitable assessment of Devlin's framework; although Devlin might

5 Dworkin insists that one not refer to it as “elitist”.

Borrie 7

himself bear some responsibility for said assessment (from overeagerness, if nothing else). Despite

vigorously defending, in his essay, the right of the UK government to enforce its preferred conception

of the good life upon individuals—even when such individuals' behaviour is entirely consensual, and

(to the layman's eye) harmless—Devlin remarks, in his concluding paragraphs, that we nevertheless

possess a multitude of other societal values worth pursuing, which may at times diverge from our

previous understanding of society's core morality. Put simply, that society has the right to enforce a

particular conception of the good life, through law and the state, does not entail that said conception

must be one-dimensional. Rather, we might have a myriad of other societal interests (Devlin mentions

privacy as one such significant interest) which form part of our conception of the good-life; such

interests may even plausibly include Mill's ideal of man-as-a-progressive-being. Thus, the

“conservative” approach to law and morality needn't preclude a nuanced discussion of the relevant

interests and societal values in cases like TWU.

To make this conclusively apparent, I would like to recall an argument given by the counsel for

the intervener “LGBTOUT” in the TWU case. LGBTOUT counsel claimed that, were a religious

university to deny admission some other protected class (e.g., members of the Jewish faith; or

interracial couples), we would immediately recognize such acts as egregious and offensive to our

conception of liberal-democracy. LGBTOUT counsel argues further that there is no such difference—at

least, on a Millian account—between the harms caused by TWU to LGBT students; and the harms

cause by another hypothetical law school discriminating against some other class.

I think LGBTOUT counsel is, for the most part, on firm footing. It is true that no liberal

conception of morality can furnish an adequate reason for distinguishing between those two sorts of

harms. However, unlike LGBTOUT counsel, I want to take it as a preeminent fact that we do feel a

different sort of repulsion from the TWU case when we hear of, say, a Nazi or Klansmen university

denying admissions to Jews and interracial couples. It is, crucially, only a Devlinite sort of argument,
Borrie 8

which can explain why this is the case. Properly judging the interests, and goods pursued by various

individuals and groups in society requires not only a (supposedly “neutral”) careful analysis of their

beneficial or harmful effects—it must also take into account just who bears the responsibility. On this

line of reasoning, we might very well have good reasons for thinking that the moral community of

TWU is many leagues more tolerable and compatible with liberal-democratic society; than is the moral

community of a Nazi or Klansmen university. And it is just this sort of nuance which we would be

precluded from acknowledging were we to hold ourselves to an unprofitable standard of neutrality.